Legal Question in Wills and Trusts in Indiana

Re: Individual assets of married persons

When a marriage is dissolved prior to the death of one of the spouses, the property is distributed according to the settlement agreement agreed upon or ordered by the judge.

When one of the spouses dies prior to the marriage being dissolved (whether it is a matter of the paperwork just not getting to the judge before the death or sooner in the process), the marriage is treated as if it were in tact at the time of the spouse's death, and the surviving spouse will be entitled to all of the property which is in joint names (by virtue of living the longest) and an intestate share of all property owned by the deceased spouse in his name alone. How much the survivor gets depends upon who else has survived the deceased spouse.

You said that there were no common children to this couple, therefore the survivor will be treated as a subsequent childless spouse, and be entitled to the survivor's allowance (found in the law at I.C. 29-1-4-1) plus a life estate in 1/3 of the lands owned separately by the deceased spouse and 1/2 of all the other property of the estate. This part is found at I.C. 29-1-2-1.

If the deceased spouse had property which was titled jointly to him and one or more of his children, then this passes automatically to the survivor and is not part of the estate that the surviving spouse is entitled to.

An action to dissolve a marriage dies with the dying spouse to the extent that the final paperwork has not been signed by the judge and any settlement no longer is applicable - except as to any pre-nuptial agreement that might have been made.

The value of the life estate given the surviving spouse is determined by reference to the IRS life estate tables and depends upon the surivor's age at the time death of the deceased spouse. It does not necessarily mean that the survivor can reside there for 1/3 of his or her life or that he or she can merely use 1/3 of the real estate, but that it is the amount of money that will be calculated as due the survivor under these circumstances.